Crafting a Motion: Case History and the Issue’s Origin
How do we craft a motion from a case outcome or holding that catches our eye? By determining how the issue arose, we learn a way to replicate it. In other words, look to how the court describes the case’s procedural history for hints on how to raise the issue yourself.
Sometimes, the how is clear. The Supreme Court’s decision in Collins v. Virginia, 138 S. Ct. 1663 (2018), is illustrative. There, the Supreme Court ruled that “the automobile exception to the Fourth Amendment” does not permit law enforcement, “uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.” Id. at 1668. The majority opinion outlined the steps that the defendant took to raise and preserve the issue: “He filed a pretrial motion to suppress the evidence that [the officer] had obtained as a result of the warrantless search . . . [and] argued that [the officer] had trespassed on the curtilage of the house to conduct an investigation in violation of the Fourth Amendment.” Id. at 1669 (emphasis added). These steps help us determine the kind of motion—in this case, a motion to suppress—that fits the issue.
In other cases, the relevant type of motion can be harder to discern. If the text of the decision does not give insight into how the issue arose, try looking in PACER, commercial databases, or other sources for the briefs that the parties filed in the case. The briefs will spell out how the parties raised the issue. Federal Rule of Appellate Procedure 28(a)(6) requires briefs to include “a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record.”
Available Procedural Means
Armed with how others successfully raised and argued the issue, you may be ready to raise and argue the issue yourself. If the slip opinion decided an appeal in the forum and venue of your own case, you may be able to emulate the prior litigants’ steps exactly to achieve a similar outcome. But if the slip opinion involved a different set of procedural rules—for example, a decision by the Supreme Court that you wish to apply in a state-court proceeding—you will need to find the analogous procedural mechanisms that are available in your target jurisdiction.
Rules of criminal procedure contain mechanisms for pretrial motions. The first stop in your search for a jurisdiction’s available procedural mechanisms for pretrial motions should be the jurisdiction’s rules of criminal procedure. For example, the Federal Rules of Criminal Procedure describe many such available procedures. Rule 12 contains one list of motions that a federal district court is willing to entertain:
- motions “alleging a defect in instituting the prosecution,”
- motions alleging “a defect in the indictment or information,”
- motions for the “suppression of evidence,”
- motions for the “severance of charges or defendants,” and
- motions for discovery.
Fed. R. Crim. P. 12(b)(3)(A)–(E).
Look also at local rules, standing orders, and other sources. See, e.g., U.S. Dist. Ct. Dist. Mass., Local Rules (June 1, 2018), These sources may provide additional guidance or available procedural mechanisms.
When exploring your jurisdiction’s procedural rules, look for descriptions of motions as well as phrases that describe the relief you seek. For example, a rule stating that a “court may order” or “must [order]” suggests that a court will entertain a motion, filed pursuant to that rule, asking the court to enter such an order. See, e.g., Fed. R. Crim. P. 14(a), 18.
Some jurisdictions allow motions in limine. If the slip opinion contains a rule of evidence that you wish to use, consider formalizing your argument in a motion in limine. A motion in limine is a request made before trial, typically for an evidentiary ruling to exclude or limit certain evidence. See Black’s Law Dictionary 1109 (9th ed. 2011); see also Jin-Ho King, The Why and How of Motions in Limine, 3 Crim. Just. Committee Newsletter (Summer 2017). Your jurisdiction’s procedural rules may not explicitly mention the use of such motions, but some quick case law research should reveal whether your jurisdiction’s courts entertain motions in limine at all.
Motions for jury instructions may arise from slip opinions. Sometimes a slip opinion clarifies or interprets the substantive criminal law. We can use such opinions as the basis for a motion or other request for specific jury instructions. See, e.g., Fed. R. Crim. P. 30(a). For example, the Supreme Court recently held that to sustain a conviction under the second clause of 26 U.S.C. § 7212(a), “the Government must show (among other things) that there is a ‘nexus’ between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action.” Marinello v. United States, 138 S. Ct. 1101, 1109 (2018). In future prosecutions under that same statute, we can file a motion asking the trial court to instruct the jury with that very holding.
Satisfying Foundational Requirements and Burdens of Proof
You have the rule from the case law and the procedural means to raise it. Now you need to make a showing—with affidavits and hearings—that you are entitled to the benefit of the relief that you seek.
Affidavits establish facts to support a motion. The most common way to set forth the factual basis for your motion is by affidavit. In fact, procedural rules frequently require that a party support pretrial motions with an affidavit. See, e.g., Mass. R. Crim. P. 13(a)(2) (requiring “an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion”); cf. Fed. R. Crim. P. 47(d) (“The moving party must serve any supporting affidavit with the motion.”).
When considering what to include in affidavits, think about all of the facts that you need to satisfy your motion’s elements. For example, if you wish to file a motion based on the Supreme Court’s holding in Collins, mentioned above, you know that you need to establish that the police entered the curtilage of the home, uninvited and without a warrant, to search a car parked there. See Collins, 138 S. Ct. at 1668. You should craft the affidavits with those facts in mind.
Your motion may require the court to examine documents not otherwise filed with the court, such as transcripts of testimony from other hearings. Attach a true and correct copy of these documents to an affidavit of counsel that identifies the documents and how you obtained them. Your motion may require a court to consider whether someone consented to a police search. Prepare that person’s affidavit describing whether she consented to the search. Your motion may require you to prove that you notified opposing counsel of some fact. Draft an affidavit that states the circumstances in which you provided notice.
When drafting, remember that an affidavit should include only facts within the affiant’s personal knowledge. Although some jurisdictions relax these requirements for certain kinds of motions, see, e.g., Commonwealth v. Lampron, 441 Mass. 265, 271, 806 N.E.2d 72, 78 (2004) (permitting hearsay in affidavits in support of certain discovery motions), consider these relaxed requirements as the exception rather than the rule.
Requests for hearings might be necessary. In drafting a motion, also consider whether you need to ask for an evidentiary hearing or other judicial inspection of evidence. Some motions require no evidentiary hearing. For example, courts rarely grant an evidentiary hearing related to a motion to suppress evidence seized pursuant to a search warrant. By contrast, a motion to suppress evidence that was seized during a warrantless search typically requires an evidentiary hearing. Ask for an evidentiary hearing when you need it.
Identifying Grounds and the Relief Sought
All motions should make clear both the grounds upon which they seek relief and the relief that they seek.
In stating the grounds, mention the holding and cite to the slip opinion or other case law on which you are relying. Mention the rule, if any, that provides the procedural mechanism for your motion. And cite the applicable statutory or constitutional provisions, if any, that form the basis of the case-law decisions that you cite.
In stating the relief, be as specific as possible. If asking to admit certain evidence, state what the evidence is (e.g., “a certified copy of the witness’s 2016 conviction for manslaughter”) and how you hope to admit it. If asking to exclude or suppress certain evidence, describe the evidence in sufficient detail (e.g., “the defendant’s February 21, 2016, statements to investigators”) to make the court’s eventual order meaningful.
Remember that failure to identify grounds can waive those grounds, and you will not get relief that you do not ask for.
Finishing Touches
Finishing the motion requires ensuring that it satisfies your jurisdiction’s procedural rules. Check the caption formatting, margin and font size, signature requirements, and other details for compliance. Also confirm whether you need to file a supporting memorandum of law contemporaneously with your motion. If so, brush off your legal writing skills and get to work. Once you’ve checked off every procedural requirement, your motion will be in a position to get favorable judicial treatment.
Jin-Ho King is a founding member of the litigation law firm Milligan Rona Duran & King LLC, based in Boston, Massachusetts.